Jamal v. Saks & Company @drjilliantweiss (USA)

Leyth O. Jamal, a transgender woman living in Texas, filed a federal lawsuit in the fall against her former employer, Saks Fifth Avenue, alleging that she was exposed to a hostile working environment at the luxury department store’s Houston-area location. Saks has filed a Motion to Dismiss. Transgender people are able to sue for employment discrimination now under Title VII; in contrast, gay people cannot sue under Title VII. Jamal is represented by Jillian Weiss.

4 thoughts on “Jamal v. Saks & Company @drjilliantweiss (USA)”

In my statement, I exclude disorders of sexual development because this is an entirely different issue. It’s my understanding that these individuals are covered under ADA.

I don’t support lawsuits by transgender identified persons under Title VII unless I know the specifics of each individual case. Depending on the particular situation, I argue that “gender identity” can and does codify sex based stereotypes into law. By perpetuating the sexist notion that there are inherent characteristic, modes of dress, mannerisms, and attributes associated with males and females, it is sex discrimination on its face. Title VII mentions sex not gender or gender identity. So, it seems clear to me that there is recognition that biological sex exist. Any rational person knows that we as a species are sexually dimorphic, and like all primates we reproduce sexually. Primates do not change their sex.

If we look at this from an historical perspective, it’s clear that the original intent of Title VII focused on biological sex not “gender identity”, or an internal thought perception, belief, or feeling. Gender and gender identity would more accurately be characterized as sex stereotypes.

I argue that erasing the female sex as a distinct class of persons and replacing it with “gender identity” is the most odious form of sex discrimination.

(a) Employer practices

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

If the courts are going to treat sex and “gender identity” as if they are one and the same, then they should clearly define “gender identity”. If we rule out disorders of sexual development which is quantifiable, for all practical purposes, gender identity is based on self-identification. People can change their gender identity at any time, but as a female I can never change my DNA. I can’t change the fact that I was born with a female reproductive system. I know that some women might be missing part of their reproductive system, or part of it might be damaged, but if the female reproductive system didn’t exist, the human species wouldn’t exist. All this is immutable whereas “gender identity” is not. Apparently, under Title VII, “sex” can mean biological sex, and it can also mean gender and gender identity. How can it be both at the same time when we know that biological sex exists, and it is not always the same as gender identity? They would have us believe that “sex” is and isn’t the same as gender identity, but they don’t even have a precise definition of gender identity other than how a person self identifies at any particular point in time.

Below I give two examples of what I do and don’t see as sex discrimination under Title VII.

Example A:

A biological male dresses and conducts himself in a way that isn’t stereotypical associated with how society views proper masculine behavior. He wants a job that is traditionally considered work that is best suited to women, or is an occupation that is comprised of a lot of women employees. He might identify as transgender, but he does not say that he is a woman. I could care less how anyone dresses, or even if he identifies as transgender. I can see how this person could claim discrimination based on sex in that it’s fundamentally discriminatory to assume that males can’t work in non-traditional occupations. Moreover, it’s wrong to assume that males must adhere to strict manners of dress and behaviors that are stereotypically associated with “masculinity”.

Example B:

A biological male dresses and conducts himself in a way that isn’t stereotypical associated with how society views proper masculine behavior. He wants a job that is traditionally considered work that is best suited to women, or is an occupation that is comprised of a lot of women employees. He identifies as transgender, and says something to the effect that, “he always felt like a woman”. He identifies as a woman, but there is no doubt that he is a biological male. When a man says that he is a “woman”, or identifies as a “woman” what does this mean? He could say that he hates sports, prefers dresses to in pants, is emotional not logical, likes to cook, and prefers certain colors over others. Does this make him a “woman’, or is he just a man who enjoys non-traditional activities and dress? Isn’t it possible that this man is really just a man who prefers activities traditionally associated with women? The following logic and thought process goes like this. Society says that girls and women like X, and I like X, therefore I’m a woman. Our culture says that boys and men like Y, and I like Y, therefore I’m a boy. Isn’t this sexist on its face? This strikes at the heart of who really is a “woman” and who really is a “man”, and how society constructs the meaning of “girl” or “boy” and “man” and “woman”.

There is no logical and consistent way to completely ferret out the “gender identity” from cultural stereotypes of what constitutes socially acceptable masculine and feminine behavior. No matter what anyone does and doesn’t do, they cannot prove that each and every person who identifies as being of the opposite sex isn’t doing so wholly or partly because of culturally based sex stereotypes.

I urge the reader to try this little experiment. Try explaining “gender identity” to me without resorting to sex based stereotypes. It’s impossible to do so. It’s repugnant, and clearly contradicts the historic spirit and intention of Title VII to attribute certain characteristics, dress, and mannerisms to the female sex as if this is what defines “woman”, “sex”, and “female”.

In example B, I can’t see how this person can claim discrimination based on sex. Title VII says “sex” not “gender identity”. If anything, the individual in Example B would be perpetuating sex stereotypes. Thus, he would be violating the very laws that he is laying claim to.

The EEOC sent a letter of determination to Ms. Jamal on February 12, 2014, which stated:

“Based upon the evidence, the Commission concludes that Charging Party was subjected to intimidation and harassment based on sex (male), and because of failure to conform to stereotypical male behavior in the workplace, in violation of Title VII. Further, the Commission concludes that Respondent has an unlawful policy or practice which denies employees access to restroom facilities consistent with their gender identity, in violation of Title VII.”

Title VII clearly includes the word “sex” not “gender identity”, and it’s historical meaning clearly is based on biological sex. “Gender identity” is not listed under Title VII. Since when did biological sex become the exact same thing as “gender identity” (sex stereotypes)?

“Plaintiff’s discrimination and harassment claims fail to state a claim upon which relief can be granted because transsexuals are not a protected class under Title VII. ”

I agree, but see my earlier post. I do believe that there are times when a transgender identified person might be able to claim discrimination based on sex, but I don’t know if this case is one of them. It’s clear to me that the historic meaning of Title VII meant sex as in biological sex, and Title VII says “sex” not gender or gender identity.

Again, Title VII clearly states discrimination based on “sex”. In the 1960s, this is what they meant. Even in 2015, biological sex exists. There is nothing that I’ve read that states that he has a disorder of sexual development, or intersex medical condition. He is not claiming this, and I’m assuming that he is a biological male. Notice how this sentence says “Ms.” and “her sex”. How can a biological male claim discrimination based on sex when it’s “her sex”? What this individual really means is gender, gender identity, or transsexual. How can “sex” mean both biological sex and “gender identity” at the same time. It looks as if this is what they are doing. This person is claiming discrimination based on sex, and at the same time saying that he is a “woman”. It’s kind of like saying his sex does and does not exist, or the very subject of his biological sex is up for debate.